Citation Nr: 0814971 Decision Date: 05/06/08 Archive Date: 05/12/08 DOCKET NO. 04-41 997 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois THE ISSUES 1. Entitlement to an evaluation in excess of 40 percent for fibromyalgia, from the initial grant of service connection. 2. Entitlement to a total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The veteran had active service from February 1991 to May 1994. This matter initially came before the Board of Veterans Appeals (Board) on appeal from a May 2002 decision by the RO which granted service connection for fibromyalgia and assigned a 40 percent evaluation, effective from December 29, 1999, the date of receipt of his original claim, and a December 2002 RO decision that denied the claim for a TDIU. The Board, in part, remanded the appeal for additional development in July 2001 and March 2004. In November 2006, the Board denied the claims for an increased evaluation for fibromyalgia and a TDIU, and the veteran appealed to the United States Court of Appeals for Veterans Claims (hereinafter, "the Court"). In December 2007, the Court granted a Joint Motion for Remand of the November 2006 Board decision. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND As a result of the Order of the Court, the Board has been directed to undertake appropriate action consistent the Joint Motion for Remand. In the Joint Motion, it was argued, in essence, that the severity of symptoms associated with the veteran's fibromyalgia rendered him unemployable, and that he should be assigned a higher evaluation on an extraschedular basis and TDIU. The representative asserted that the Board did not consider the veteran's educational and occupational history or the effect that his symptoms of fibromyalgia had on his concentration and physical stamina for maintaining gainful employment. It was asserted that the veteran has been unemployed since 2001, and that he was fired from his last job because of his service-connected fibromyalgia. The record indicates that the veteran enrolled in college in August 2001, and was still enrolled on a full-time basis in June 2002. However, the current evidence of record does not include any additional information, such as, grades, courses, or whether the veteran completed his degree. Similarly, the current evidence of record does not include any information from former employers concerning the veteran's work history. Further, the most recent VA examinations of record are more than four years old and do not include any information concerning the veteran's psychological assessment, vis-à-vis, his concentration and comprehension abilities. Under the circumstances, the Board finds that a more current examination would be useful in determining the extent and severity of the veteran's service-connected disabilities and what, if any, affect they have on his employability. The duty to assist includes providing a thorough and contemporaneous medical examination, especially where it is necessary to determine the current level of a disability. Peters v. Brown, 6 Vet. App. 540, 542 (1994). In light of the discussion above, and to ensure full compliance with due process requirements, it is the decision of the Board that further development is necessary prior to appellate review. Accordingly, the claim is REMANDED to the RO for the following action: 1. The AMC should send the veteran a letter providing the notice required under 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) for his claim for an increased rating for fibromyalgia and TDIU, including what is required to establish a disability rating and effective date per Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 2. The AMC should take appropriate steps to contact the veteran and obtain the names and addresses of all medical care providers who treated him for his service-connected dermatitis and fibromyalgia, and any related symptoms, since February 2004. After securing the necessary releases, the AMC should attempt to obtain copies of all medical records from the identified treatment sources not already of record, and associate them with the claims folder. If records cannot be obtained, this should be noted in the claims folder, and the veteran should be notified and so advised. 3. After obtaining written consent from the veteran, the AMC should contact all his former employers since his discharge from service and obtain copies of any employment medical records. The employers should note the beginning and ending dates of any employment; time lost from gainful employment due to his service-connected disabilities, and whether any concessions were made to the veteran because of his disabilities. The reason for his termination should be reported. The veteran should be advised that he may submit any other evidence in his possession or which he is able to obtain documenting marked interference with employment attributable to his service-connected disabilities. If he has had any periods of hospitalization for these disabilities, he should so indicate and provide signed authorizations so that the VA may obtain any medical records not already associated with the claims file. The AMC should also take appropriate steps to obtain copies of the veteran's college transcripts and associate them with the claims file. 4. The veteran should be afforded a VA examination to determine the current severity of his fibromyalgia. The claims folder should be made available to the examiner for review and a notation to the effect that this record review took place should be included in the report of the examiner. All appropriate testing should be undertaken in connection with this examination. The examiner should comment on the presence and severity of manifestations of fibromyalgia including widespread musculoskeletal pain and tender points, with or without associated fatigue, sleep disturbance, stiffness, paresthesias, headache, irritable bowel symptoms, depression, anxiety, or Raynaud's-like symptoms. The examiner should comment on the frequency of exacerbations and precipitating factors, the need and frequency of the use of medication, and whether such symptomatology is refractory to therapy. The examiner should note that "widespread pain" is defined as pain in both the left and right sides of the body that is both above and below the waist, and that affects both axial skeleton (i.e. cervical spine, anterior chest, thoracic spine, or low back) and the extremities. See 38 C.F.R. § 4.71a, Diagnostic Code 5025, including Note (2007). The examiner should also provide an opinion concerning the impact of the veteran's fibromyalgia on his ability to work. The rationale for all opinions expressed should also be provided. 5. The veteran should be afforded a VA psychological evaluation to determine the extent and severity of any identified psychological impairment due to service- connected fibromyalgia. The claims folder should be made available to the examiner for review and a notation to the effect that this record review took place should be included in the report of the examiner. All appropriate psychological testing should be undertaken in connection with this examination. The examiner should indicate whether the veteran demonstrates any impairment in concentration or comprehension associated with his service-connected fibromyalgia and, if so, how any such impairment impacts on his ability for gainful employment. The examiner should describe the findings in detail and provide a complete rationale for all opinions and conclusions; any opinion should be supported by reference to specific medical records on file. 6. The veteran should be afforded a VA dermatology examination to determine the current severity of his seborrheic dermatitis, and the impact of this disability on the veteran's employability. All indicated tests and studies should be accomplished. 7. The veteran must be given adequate notice of the date and place of any requested examination. A copy of all notifications should be associated with the claims folder if feasible. The veteran is hereby advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claim. 8. Following completion of the foregoing, the AMC must review the claims folder and ensure that all of the foregoing development has been conducted and completed in full. In particular, the AMC should determine whether the examiners have responded to all questions posed. If not, the report must be returned for corrective action. 38 C.F.R. § 4.2 (2007). 9. After the requested development has been completed, the claims must readjudicated based on all the evidence of record, all governing legal authority, including the VCAA and implementing regulations, and any additional information obtained as a result of this remand. Consideration should also be given to referring the veteran's claim to the Chief Benefits Director or the Director, Compensation and Pension Service for consideration of an extra- schedular evaluation under the provisions of 38 C.F.R. § 3.321 (2007). If the benefits sought on appeal remain denied, the veteran and his representative must be furnished a Supplemental Statement of the Case and given the opportunity to respond thereto. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2007).